A-1-CA-35569 | Omnilex

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Court of Appeals of New Mexico
Filed 4/30/2019 8:44 AM
Mark Reynolds

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Court of Appeals of New Mexico

ZOE NAUMAN, Filed 4/30/2019 8:44 AM
Petitioner-Appellee, Hh J>4

V. No. A-1-CA-35569

DANIEL CHRISTOPHER PETER MATHER,

Respondent-Appellant.

APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
Matthew J. Wilson, District Judge

Richard S. Lees, P.A.
Richard S. Lees
Santa Fe, NM
for Appellee
Law Office of Jane B. Yohalem
Jane B. Yohalem
Santa Fe, NM
for Appellant
MEMORANDUM OPINION
HANISEE, Judge.
{1} |The memorandum opinion filed in this case on December 6, 2018, is hereby
withdrawn, and this opinion is substituted in its place.

23 Daniel Christopher Peter Mather (Husband) appeals the district court’s denial

of his motion to set aside the district court’s entry of default judgment in favor of

Zoe Nauman (Wife) and the district court’s subsequent denial of his motion to
reconsider. We affirm.

BACKGROUND

{3} On November 17, 2014, Wife petitioned to dissolve her marriage with
Husband. In her petition, Wife cited “differences in temperament and outlook” along
with “a state of incompatibility” as the bases for dissolution of marriage, then alleged
that the marital residence (the Santa Fe residence), along with other unspecified
items of property, were her separate property. Regarding the Santa Fe residence,
Wife additionally maintained that Husband “refuse[d] to vacate” the premises. In
her petition, Wife further sought division of community assets and liabilities,
allocation of responsibility for outstanding community obligations, and that the
district court “[i]dentify and restore [Wife’s] separate property.”

{4} Husband was served with notice of Wife’s petition on November 23, 2014.
Husband did not, however, answer Wife’s petition, nor did he file any pleading,
motion, or other document responsive to the petition in district court. The district
court mailed “numerous pleadings” to Husband’s home, including notices of
hearings and a mediation order. Nonetheless, Husband failed to respond, or to appear
for or participate in any proceeding associated with the pending cause of action.
Upon Wife’s motion, the clerk of the district court certified Husband’s default on

January 26, 2015.

{5} Nearly two months later, on March 17, 2015, Wife filed an application for
entry of default judgment against Husband, wherein she submitted a detailed
proposal dividing community property, assets, and liabilities. Wife claimed that the
Santa Fe residence and certain commercial property in California were her separate
property. In thorough detail, Wife proposed division of other items of community
property, suggesting among many other things that Husband be provided with three
vehicles, computers, and various other items of personal property, and herself with
one vehicle and personal items identified as both separate and community property.
Wife additionally proposed division of various community liabilities, including a
two-million-dollar liability owed to Wife’s father for which Wife conceded sole
responsibility. She additionally stated her willingness to pay Husband a “lump sum
amount of $20,000” as “transitional spousal support” premised upon a portion of the
amount being used by Husband to attain a home and to facilitate him moving into it
and out of the Santa Fe residence.

6} The district court notified Husband by mail of the hearing on Wife’s
application for entry of default judgment. Again, Husband did not respond or appear
at the hearing. On May 5, 2015, the district court entered a default judgment against
Husband and, in its ensuing order, adopted Wife’s proposed divisions of property,

assets, and liabilities, stating with regard to the largest community liability (the

$2,000,000.00 loan from Wife’s father) that Wife “shall be solely responsible for the
debt to [her father].”

{7} Over three months later, on August 25, 2015, Husband filed a motion to set
aside the default judgment pursuant to Rule 1-060(B)(1), (4), and (6) NMRA
(Motion). As grounds, the Motion contended that the judgment was void under Rule
1-060(B)(4) because Husband had not been properly served pursuant to Rule 1-004
NMRA (2012), in violation of his constitutional right to due process. Husband’s
Motion also argued that his not having responded to or participated in the lawsuit
was a product of excusable neglect under Rule 1-060(B)(1) based upon what
Husband contended were ongoing settlement negotiations and personal medical
issues. As well, Husband contended that “[e]nforcement of the default judgment
would be unjust in the extreme” based primarily upon his contention that the default
judgment required—which it did not'—that husband “pay back an alleged
$2,000,000.00 loan while [Wife] keeps all the parties[’] major assets as her sole and
separate property.” Lastly, Husband argued that before it could adopt Wife’s

proposals regarding the division of community assets and liabilities, the district court

' Husband conceded in his reply to Wife’s response to his Motion that his
attorney “misread the default judgment” and that his responsibility for shared
liabilities “except the alleged [$2,000,000.00] loan.” He nonetheless contended that
there was no proof that the loan had in fact been made and that the liability wrongly
contributed to the default judgment’s conclusion that “all the major assets of the
parties are [Wife’s] sole and separate property.”

was required to hold an evidentiary hearing because what Husband identified to be
the “damages” sought by Wife were “unliquidated” in nature. The district court
denied Husband’s Motion as well as Husband’s motion to reconsider the district
court’s denial of the Motion. Husband appealed.

DISCUSSION

{8} On appeal, Husband argues: (1) the district court’s entry of default judgment,
including the manner in which it determined ownership and division of property,
was inconsistent with due process of law and therefore void under Rule 1-060(B)(4);
and (2) the district court abused its discretion in refusing to find that “extraordinary
circumstances” existed to justify setting aside the default judgment under Rule 1-
060(B)(6). We consider each of Husband’s arguments in turn.

I. The District Court’s Default Judgment Was Appropriate

{9} In the district court, Husband’s sole contention under Rule 1-060(B)(4), and
only basis for alleging a due process violation to support voiding the judgment, was
that he was not served with Wife’s petition for divorce. Specifically, Husband argued
that “[s]ervice of process did not meet the requirements of Rule 1-004[] NMRA...
, and therefore violated [Husband’s] constitutional right to due process.” He
concluded his argument under Rule 1-060(B)(4) by stating only that “it is clear that
[Husband] was not properly served with process, and had no actual notice of the

action pending against him. Thus, the default judgment is void, and must be set

aside[.]” Had Husband indeed not been properly served, the district court would have
erred in denying Husband’s Motion. See Classen v. Classen, 1995-NMCA-022,
q 13, 119 N.M. 582, 893 P.2d 478 (“If service did not meet due process standards,
the judgment is voidable at any time under [Rule] 1-060(B)(4).”). However, in its
order denying Husband’s Motion, the district court expressly found that “[Husband]
was properly served[,]” a finding that Husband does not challenge on appeal.

{10} Abandoning his argument that the judgment was void for lack of proper notice
by service of process, Husband now advances an altogether different argument as to
how the district court’s entry of default judgment violated due process. Husband
contends that the district court acted in a manner inconsistent with due process of
law by “fail[ing] to engage in the reasoned and impartial decision[{ ]making based
on evidence required by the Due Process Clause.” According to Husband, “[t]he
record was completely devoid of information about the circumstances or finances
of’ Husband and Wife, thereby rendering the district court’s entry of judgment based
on Wife’s proposed distribution of property, contained in her proposed decree of
dissolution of marriage, in violation of his due process. Specifically, Husband
contends that “[t]he wholesale adoption by the court of a property determination and
division prepared by [Wife] without putting [Wife] to ... her proof abdicates the

essential rule of the court as the fact[-]finder and impartial decision maker.”

A. Standard of Review

4113. “Generally, the grant or denial of relief pursuant to [Rule] 1-060(B) is a matter
within the discretion of the trial court, and our review is limited to the question of
whether there has been an abuse of that discretion.” Classen, 1995-NMCA-022,
4 10. In the context of Rule 1-060(B)(4), however, “discretion has no place[,]”and
“li]f the underlying judgment is void, it must be set aside.” Classen, 1995-NMCA-
022, | 10. “A judgment is void only if the court rendering it lacked jurisdiction of
the subject matter, or of the parties, or acted in a manner inconsistent with due
process of law.” Jd. (emphasis, internal quotation marks, and citation omitted).

B. Procedural Due Process Principles

{123 “The essence of due process is notice and an opportunity to be heard at a
meaningful time and in a meaningful manner.” State ex rel. Children, Youth &
Families Dep’t v. Maria C., 2004-NMCA-083, J 26, 136 N.M. 53, 94 P.3d 796
(internal quotation marks and citation omitted). “Procedural due process is
ultimately about fairness, ensuring that [an affected party] is notified about a
proposed government action and afforded the opportunity to make its voice heard
before that action takes effect.” Rayellen Res., Inc. v. N.M. Cultural Props. Review
Comm., 2014-NMSC-006, 428, 319 P.3d 639 (emphasis added). Whether due
process has been afforded focuses on the nature and appropriateness of the

opportunities to be heard that are provided in light of the facts and circumstances of

a given case. See Mills v. N.M. State Bd. of Psychologist Exam’rs, 1997-NMSC-028,
q 14, 123 N.M. 421, 941 P.2d 502 (listing procedural protections that due process
“could encompass[,]” including “the opportunity to orally present a case[,] ... the
opportunity to present evidence and witnesses[,] . . . [and] the opportunity to cross-
examine witnesses” (emphasis added)); Buffington v. McGorty, 2004-NMCA-092,
q 30, 136 N.M. 226, 96 P.3d 787 (holding that in the context of Rule 1-053.2 NMRA
domestic relations proceedings, due process requires that “the parties be given an
opportunity to submit objections to a [domestic relations] hearing officer’s report
and recommendations” and “be heard by a judicial officer” (emphasis added)).
Indeed, “[p]rocedural due process is a flexible right[,] and the amount of process due
depends on the particular circumstances of each case.” Sandia v. Rivera, 2002-
NMCA-057, 9 10, 132 N.M. 201, 46 P.3d 108 (internal quotation marks and citation
omitted); see Buffington, 2004-NMCA-092, 431 (explaining that “[t]he nature of
the hearing and review to be conducted by the district court will depend upon the
nature of the objections being considered” (emphasis added)).

13} Additionally, “[p]rocedural due process requires a fair and impartial hearing
before a trier of fact who is disinterested and free from any form of bias or
predisposition regarding the outcome of the case.” N.M. Bd. of Veterinary Med. v.
Riegger, 2007-NMSC-044, 27, 142 N.M. 248, 164 P.3d 947 (internal quotation

marks and citation omitted). “The inquiry is not whether the [fact-finder is] actually

biased or prejudiced, but whether, in the natural course of events, there is an
indication of a possible temptation to an average person sitting as a judge to try the
case with a bias for or against any issue presented to him or her.” /d. (alterations,
internal quotation marks, and citation omitted).

C. Analysis

{14} The fatal aspect of Husband’s argument is its failure to acknowledge that the
district court’s “wholesale adoption” of Wife’s proposed distribution of property was
occasioned by Husband’s own failure to participate in the proceedings, despite
having notice of both Wife’s petition for divorce and Wife’s application for default
judgment and final decree of dissolution of marriage. Moreover, Husband ignores
that the district court, in fact, scheduled and held a hearing on May 4, 2015, on
Wife’s petition for default judgment and final decree of dissolution of marriage of
which Husband was notified by the court and did not attend. At the hearing, Wife
submitted for the district court’s consideration a signed schedule of assets and
liabilities that Wife’s counsel described as “consistent with the decree.” Only after
reviewing Wife’s proposed final decree and affidavit did the district court sign the
default judgment and final decree of divorce.

415} Husband offers no argument as to how requiring additional procedural
safeguards—i.e., requiring the district court to conduct a full evidentiary hearing in

order to put Wife to her proof—would have reduced the risk of an erroneous

deprivation. See Sandia, 2002-NMCA-057, § 11 (explaining that we “evaluate the
risk of an erroneous deprivation of the private interest through the procedures used,
and the probable value, if any, of additional or substitute procedural safeguards”
(alteration, internal quotation marks, and citation omitted)). Nor does Husband
explain how the district court’s failure to hold a full-blown evidentiary hearing in
his absence somehow “indicat[es] a possible temptation” by the district court to
decide the issue of how to equitably divide the parties’ property “with bias for or
against any issue presented to [it]” as would be necessary to implicate due process.
See Riegger, 2007-NMSC-044, § 27. It is undisputed that Husband failed to respond
to Wife’s petition for divorce. As a result, he was found to be in default. The district
court sent notice of the hearing on Wife’s petition for default judgment and final
divorce decree to Husband’s address of record. Husband did not appear at the
hearing yet now complains that in his unexcused absence, the district court was
required to do more than consider the evidence before it, including Wife’s affidavit.
We conclude that Husband has failed to establish that the district court’s entry of
default judgment was void as a matter of law for failure to afford Husband due
process.

II. The District Court Did Not Abuse Its Discretion in Refusing to Set Aside
the Default Judgment Under Rule 1-060(B)(6)

{16} Husband next argues that the district court “[i]gnore[d] or [o]verlooked” the

extraordinary circumstances in this case and “abused its discretion as a matter of

law” by failing to grant him relief from the default judgment under Rule 1-060(B)(6).
We disagree.

4173 “A party seeking relief from a default judgment must show the existence of
grounds for opening or vacating the judgment and a meritorious defense or cause of
action.” Rodriguez v. Conant, 1987-NMSC-040, J 18, 105 N.M. 746, 737 P.2d 527.
“Upon such a showing, the district court has the discretionary authority to set aside
the judgment.” Jd. “On appellate review, [the district court’s] ruling will not be set
aside except for an abuse of that discretion.” /d. To reverse a district court’s ruling
under Rule 1-060(B)(6) as an abuse of discretion, “it must be shown that the court’s
ruling exceeds the bounds of all reason or that the judicial action taken is arbitrary,
fanciful, or unreasonable.” Meiboom v. Watson, 2000-NMSC-004, 4 29, 128 N.M.
536, 994 P.2d 1154 (omission, internal quotation marks, and citation omitted).

18} Rule 1-060(B)(6) permits relief from final judgment for, in addition to the
more specific provisions set forth in Rule 1-060(B)(1)-(5), “any other reason
justifying relief from the operation of the judgment[.]” “We have stated that Rule 1-
060(B)(6) is designed to apply only to exceptional circumstances, which, in the
sound discretion of the trial judge, require an exercise of a reservoir of equitable
power to assure that justice is done.” Martinez v. Friede, 2004-NMSC-006, § 20,
135 N.M. 171, 86 P.3d 596 (internal quotation marks and citation omitted),

superseded by rule on other grounds as stated in State v. Moreland, 2008-NMSC-

031, J 11, 144 N.M. 192, 185 P.3d 363. “[P]arties seeking relief under Rule 1-
060(B)(6) must demonstrate the existence of exceptional circumstances and reasons
for relief other than those set out in Rule 1-060(B)(1)[-](5).” Meiboom, 2000-
NMSC-004, ¥ 33 (internal quotation marks and citation omitted). A district court
does not abuse its discretion in denying a motion to set aside a judgment under Rule
1-060(B)(6) when the moving party “fail[s] to satisfy the requirements for relief
under” that rule. See Meiboom, 2000-NMSC-004, § 30.

{19} Husband contends that the following circumstances comprise exceptional
circumstances requiring that the default judgment be set aside under Rule 1-
060(B)(6) “as a matter of equity”: (1) the “admittedly large” value of the parties’
assets that was divided via the default judgment under the final decree of dissolution
of marriage; (2) that Wife and Wife’s attorney failed to specifically inform Husband,
or Husband’s attorney from a prior proceeding, of the scheduled default judgment
hearing; and, (3) “the complete failure of Wife’s counsel to offer any evidentiary
support for the characterization and division of property proposed by Wife[,]” which
Husband describes as “itself extraordinary.” We consider each of Husband’s
arguments, though we do not follow Husband’s order of presentation.

{20}. We first address Husband’s contention that Wife’s and Wife’s attorney’s
failures to personally and specifically notify him of the default judgment hearing

constitutes an exceptional circumstance requiring that the default judgment be set

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aside. According to Husband, “[t]he conclusion that Wife and Wife’s counsel took
advantage of Husband’s illness and confusion[,] making sure to stay in contact with
him[] but not to tell him about the litigation{] until the default judgment was actually
entered[,] is hard to avoid.” We disagree, and our review of the record indicates that
such a conclusion is, in fact, unsupportable, not unavoidable. The district court’s
order denying Husband’s motion to set aside default judgment expressly found the
following:

3. [Husband] was served with the [s]ummons and [Wife’s petition

for divorce] on November 23, 2014. . . . [Husband] refused to open the

door [for the process server] to take delivery of the papers and

instructed [the process server] to leave the documents at the door.

4. After November 23, 201[4,] the [district cJourt sent numerous

pleadings captioned in the case to [Husband] at the address of his

residence[.]. . . The [district c]ourt’s correspondence was found opened

and in the residence when [Wife] re-took possession of the residence.

5. [Husband] was aware of the judicial proceedings brought against
him by [Wife].

6. [Husband] chose not to participate in the proceedings.
Husband does not challenge any of these findings, meaning they are binding on this
Court. See Stueber v. Pickard, 1991-NMSC-082, 4 9, 112 N.M. 489, 816 P.2d 1111
(explaining that an unchallenged finding of the district court is binding on appeal).
Husband’s unsupported contention that “Wife and Wife’s counsel took advantage of
him” simply cannot be reconciled with the district court’s unchallenged factual

findings that Husband did not participate in the proceedings by his own choosing,

not because of any nefarious actions by Wife or Wife’s attorney. We reject
Husband’s argument that the default judgment must be set aside on this basis.

21; We likewise summarily reject Husband’s conclusory assertions regarding
Wife’s counsel’s “failure” to submit “evidentiary support”—such as tax returns or
an accounting—to justify Wife’s proposed distribution of property. Husband cites
no legal authority for such a requirement in a circumstance such as he created by his
systemic non-participation in court proceedings and fails to develop any principled
analysis of his bald claim that Wife’s counsel’s handling of the default judgment
proceedings, particularly the May 4 hearing, “is itself an extraordinary
circumstance.” We, therefore, consider that argument no further. See Headley v.
Morgan Mgmt. Corp., 2005-NMCA-045, 4 15, 137 N.M. 339, 110 P.3d 1076 (“We
will not review unclear arguments, or guess at what [a party’s] arguments might
be.”); [TT Educ. Servs., Inc. v. Taxation & Revenue Dep’t, 1998-NMCA-078, { 10,
125 N.M. 244, 959 P.2d 969 (explaining that this Court will not consider
propositions that are unsupported by citation to authority).

{223} Finally, we reject Husband’s claim that the “large” value of the parties’ assets
itself somehow necessitates setting aside the default judgment. Citing Springer
Corp. v. Herrera, 1973-NMSC-057, 4 12, 85 N.M. 201, 510 P.2d 1072, overruled
on other grounds by Sunwest Bank of Albuquerque v. Rodriguez, 1989-NMSC-011,

q 12, 108 N.M. 211, 770 P.2d 533, and Rodriguez v. Conant, 1987-NMSC-040, § 22,

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105 N.M. 746, 737 P.2d 527, Husband argues that New Mexico case law “provide[s]
that ‘claims for large sums of money should not be determined by default judgments
if they can be reasonably be avoided.’ ” Beyond reciting this general proposition of
law and referring to portions of the record establishing the value of some of the
parties’ assets, Husband does nothing more than complain that “[t]he district court’s
adoption of Wife’s proposed decree left Husband and his son destitute.” Given the
district court’s aforementioned, unchallenged findings that Husband was aware of
the divorce proceedings and chose not to participate, it can hardly be said that the
district court’s entry of default judgment could have been reasonably, if at all,
avoided and therefore fails to conform with the general principle established in
Springer, or that its refusal to set aside that judgment based on Husband’s Motion
constitutes an abuse of discretion.

23} On the record and arguments before us, we conclude that Husband has failed
to demonstrate that the district court abused its discretion by refusing to set aside the
default judgment under Rule 1-060(B)(6).

CONCLUSION

24, For the foregoing reasons, we affirm the district court’s denials of Husband’s
Motion and his motion for reconsideration.

25} ITISSO ORDERED. ~

whl ~

J. MILES HANISEE, Judge

1 3 2
WE CONCUR:
M. MONICA ZAMORA, Chief Judge
4 5
Oque A. Vargar
JULIE J. VARGAS, Judge
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April 30, 2019- Zoe Nauman v. Daniel Christopher Peter Mather, No. A-1-CA-35569

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